Opinion
No. 4:06CV1797-SNL.
June 29, 2007
ORDER
Pursuant to an accompanying Memorandum Opinion,
IT IS HEREBY ORDERED that Movant's "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody" is DENIED.
After a thorough review of the entire file in this matter, and all of the notes of this Court, the court finds that a certificate of appealability should not be granted to Mark Hunt.
IT IS FURTHER ORDERED that defendant should not be granted a Certificate of Appealability.
MEMORANDUM OPINION
Movant's "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence By a Person in Federal Custody" is before the Court. The Government has responded in opposition.
Background
Movant and co-defendant, Wendy Woods, were charged in a five-count indictment. Movant was charged in the first three counts and Woods only in the last two counts. Pursuant to a plea agreement, Movant entered a plea of guilty to Count 1, conspiring to distribute more than 100 grams of heroin; Count 2 which was distribution of heroin and Count 3, possession with intent to distribute heroin, all in violation of 21 U.S.C. § 841(a)(1). In the agreement, the parties waived all rights of appeal.
Movant was sentenced to an aggregate term of 96 months custody of the Bureau of Prisons and this request for § 2255 relief followed.
Standard of Review
To prevail on an ineffective assistance of counsel claim, a convicted defendant must first show counsel's performance "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The defendant must also establish prejudice by showing "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. See also U.S. v. Coleman, 2005 WL 3021104 (E.D. Mo. 2005).
The two-part Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). The performance prong of theStrickland test remains the same. Id. at 58-59. To establish prejudice in the context of the plea process the defendant must show "there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Id. at 59.
The standard has been defined by the United States Court of Appeals for the Eighth Circuit as follows:
"An ineffective assistance claim generally requires two showings. `First the defendant must show that counsel's performance was deficient.' Strickland, 466 U.S. at 687, 104 S.Ct. 2052. This entails `showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.' Id. Second, the defendant must show prejudice. Id. To show prejudice, he or she must prove that `counsel's errors were so serious as to deprive [him or her] of a fair trial, a trial whose result is reliable.' Id. accord Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (admonishing that the prejudice prong encompasses more than mere outcome determination; rather, the focus of the question of prejudice is `whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.)."Covey v. United States, 377 F.3d 903, 906 (8th Cir. 2004). A defendant "faces a heavy burden" to establish ineffective assistance of counsel pursuant to § 2255. DeRoo v. United States, 223 F.3d 919, 925 (8th Cir. 2000). Ordinarily, if the defendant cannot prove prejudice, it is not necessary to address whether counsel's performance was deficient. United States v. Apfel, 97 F.2d 1074, 1076 (8th Cir. 1996); DeRoo, at 925.
Discussion
Movant sets out five grounds wherein he asserts his counsel was ineffective, and they will be considered as presented.
Ground 1: Failure of counsel to challenge the indictment.
Count 1 of the indictment charged movant as follows:
"The Grand Jury charges that:
Beginning at a time unknown to the Grand Jury, but up to and including July 13 and 14, 2005, and continuing thereafter up to and including the date of this indictment, with the exact dates unknown to the Grand Jury, in the City of St. Louis and in the County of St. Louis, and elsewhere within the Eastern District of Missouri,
MARK HUNT
the Defendant herein, did knowingly and willfully conspire, combine, confederate and agree with one or more other persons known and unknown to the Grand Jury to commit an offense against the United States; to wit: to distribute and possess with the intent to distribute in excess of 100 grams of heroin, a Schedule I controlled substance drug.
In violation of Title 21, United States Code, Section 841(a)(1), and Title 21, United States Code, Section 846, and punishable under Title 21, United States Code, Section 841(b)(1)(B)(I)."
Movant states that his counsel was ineffective for two reasons. First, the indictment did not state the beginning date. Second, there were no other "named conspirators" in the indictment. Movant states these deficiencies prejudiced him in determining whether or not he should enter a plea of guilty. These charges should be ruled against movant on the merits. Ordinarily, the sufficiency of an indictment is challenged by the filing of a Bill of Particulars "however, a Bill of Particulars is not a proper vehicle by which to seek to obtain names of witnesses, evidentiary detail or the government's theory of the case." U.S. v. Welch, 2007 WL 1138842 (E.D.Mo. 2007). See also U.S. v. Dicesare, 765 F.2d 890, 897 (9th Cir. 1985). (A Bill of Particulars is not appropriate to obtain the names of any unknown co-conspirators or to determine the exact date on which the alleged conspiracy allegedly began.) (Case amended for other reasons. See U.S. v. Dicesare, 777 F.2d 543.)
An indictment must be sufficiently precise so as to inform a defendant of the charge against him, to enable him to prepare a defense and to avoid the danger of surprise at trial. U.S. v. Welch, supra. The indictment here was sufficient to accomplish that purpose and counsel was not deficient for failing to attack it. The fact that the beginning date of the alleged conspiracy was not stated with particularity did not render the indictment deficient, not did it deprive movant of his ability to prepare his defense.
As previously stated, the indictment contained five counts: Movant was named in Counts I, II and III; his co-defendant was named in Counts IV and V. The conspiracy in Count I specifically states that the time of July 13 and 14, 2005 is included. Counts IV and V involve alleged drug activity by co-defendant Wendy Woods on July 14, 2005. It is obvious to Movant that Wendy Woods, as a co-defendant in this case, was involved in the illegal possession with intent to distribute a quantity of heroin. Accordingly, the indictment was sufficiently worded to enable Movant properly to prepare his defense.
Ground 2:
Here, Movant avers his counsel was deficient in failing to file discovery motions. Movant states that his counsel should have "ascertain the identity of his co-defendants of the conspiracy." Movant felt it was necessary to verify the co-defendant was not the "confidential informant." As stated in Count I, the co-defendant in this case, Wendy Woods, was named in the indictment and obviously she was known to Movant.
Movant and the government entered into a plea agreement in this case and at the time of the plea, Movant admitted to the Court that the statement of facts set out in the agreement were correct. Agreement, p. 9-13. A portion of the statement of facts in the Agreement is set out as follows:
"On July 14, 2005, DEA again wired the informant's residence and the informant with audio and video recording equipment, and provided the informant with $6,300 in prerecorded currency. The informant called defendant and stated he was ready to pay the drug debt from the day before. Defendant came to the informant's residence, where the informant paid defendant $6,300 in exchange for the heroin defendant had delivered the day before. Defendant agreed to front one additional ounce of heroin to the informant, and defendant and the informant agreed on a meeting place. Defendant told the informant that "Wendy" would deliver the heroin to the informant. Defendant and co-defendant Wendy Woods agreed that Woods would deliver the heroin to the informant on defendant's behalf."
"While under surveillance, defendant went to the second floor apartment of 3440 Utah. Meanwhile. the informant and Wendy Woods met at the prearranged meeting place, and Woods delivered the heroin for defendant, as she had agreed to do. DEA followed Woods to her residence and arrested her for distribution of heroin. DEA informed Woods of her Miranda rights, and Woods voluntarily, knowingly, and intelligently executed a waiver-of-rights form and agreed to make a written statement. Woods informed DEA that she started buying heroin from defendant in January 2005, that defendant asked Woods to deliver heroin to the informant earlier that day, and Woods agreed to deliver the heroin."
Counsel was not deficient in failing to ascertain the identity of the co-defendant as it was obvious from reading the indictment that Woods was a co-defendant, charged with an offense that occurred on the same date Movant was charged. Movant had face-to-face encounters with the informant, who was a different person than the co-defendant.
Ground 3:
Next Movant claims that counsel was deficient in failing to move to suppress evidence concerning the drugs seized from the residence, and from Movant's co-defendant. Movant states that he was arrested without any drugs on his person or under his control.
Movant's statements belie the statement of facts which Movant agreed was correct at the time of his plea. In the Stipulation of Facts which Movant alleged were correct, he agreed that he engaged in a conspiracy to distribute and possess with intent to distribute more than 100 grams of heroin, and that he distributed a quantity of heroin on July 13 and July 14, 2005. Movant agreed that he engaged in drug transactions with an informant on July 13, 2004 for which the informant owed defendant $7,200. Movant agreed that he was dealing heroin from the first floor apartment of 3440 Utah and 7521 Santa Monica in the City and County of St. Louis, Missouri. He agreed that he received $6,300 from the informant as a result of one of the drug deals and that at the time of his arrest, he had the $6,300 on his person. Movant agreed that heroin was found in his bedroom at 3440 Utah and the quantity was 92.24 grams. Plea Agreement, pgs. 9-12. Obviously, all of the information in the statement of facts set out in the Plea Agreement was possessed by Movant.
It was also obvious that a motion to suppress this evidence would have been of no advantage to Movant. There was never any factual or legal indication that Movant's arrest or the subsequent searches of his two apartments was illegal. The entry and search of the apartment at 3440 Utah was with the consent of the owner of the building. The entry and search of the apartment at 7521 Santa Monica was made after a search warrant had been issued properly. Plea Agreement, p. 12. A motion to suppress would have been futile.
Ground 4:
In this ground, Movant states that his counsel was ineffective in that he did not investigate or conduct witness interviews with prosecution witnesses, police officers and others in order to determine their credibility and reliability and that counsel failed to file a motion to suppress statements to prevent them from being introduced.
The Court will not restate the Statement of Facts in the Plea Agreement which were admitted by Movant at the time of the plea, but will simply call attention to them in addressing Ground 4.
Again, all of this information was available to Movant and his counsel. It was obvious to Movant that his co-defendant, Woods, if cooperating with the government, would have revealed everything she knew about her relationship with Movant and all of the transactions involved. The quantity of the heroin was set out in the lab reports which were made available to Movant and counsel. There was little that counsel could do to obtain evidence or information on which Movant could lodge a defense. This ground, which is mostly duplicative, should be ruled against Movant.
Ground 5:
Movant has added this additional ground as a part of his motion. He asserts that his counsel was ineffective in failing to object to the Presentence Investigation Report (PSR). Movant objects to the assessment of certain criminal history points, imposed "for an offense committed prior to the defendant's 18th birthday." Movant states that this sentence should be counted "only if confinement resulting from such sentence extended into the five-year period preceding the defendant's commencement of the instant offense."
The PSR revealed various criminal convictions which resulted in a sub-total criminal history score of 8. Two points were added pursuant to United States Sentencing Guidelines (USSG), Section 4A1.1(d) and an additional point pursuant to Section 4A1.1(e). The total criminal history points were 11 establishing a criminal history category of V. (PSR, pgs. 6-11).
On February 6, 1990, Movant was sentenced to three years imprisonment and the execution of the sentence was suspended and he was placed on a five-year probation period. The offense was possession of a controlled substance and the sentence was handed down by the Circuit Court of St. Louis, Missouri. On March 1, 1991 Movant's probation was revoked and he was sentenced to three years imprisonment in the Missouri Department of Corrections.
The charge was initially filed in St. Louis County Juvenile Court on May 14, 1988 when Movant was 16 years of age. On October 7, 1988, an order was entered dismissing the petition in juvenile court and ordering prosecution of Movant as an adult. The adult complaint was filed April 11, 1989 citing Movant with possession of cocaine on May 13, 1988. Movant asserts that his counsel was deficient in failing to object to the three points assessed for the February 6, 1990 sentence because the assessment was improper due to Movant's age.
Section 4A1.2(d), USSG, describes the rules for the addition of points for offenses committed by a defendant prior to age 18. Section 4A1.2(d)(2) provides that two points shall be added for each adult or juvenile sentence to confinement of at least 60 days if the defendant was released from such confinement within five years of his commencement of the instant offense, or one point for each adult or juvenile sentence imposed within five years of the defendant's commencement of the instant offense not previously covered.
Movant committed the instant offenses on July 13 and 14, 2005, well beyond the five-year limitation period which would have run either on February 6, 1990, the date he was sentenced to three-years imprisonment, or March 1, 1991, when his probation was revoked, or January 17, 1994, when his probation expired.
Movant relies on the wrong USSG Guideline. Section 4A1.2(d)(1) provides: "If the defendant was convicted as an adult and received a sentence of imprisonment exceeding one year and one month, add three points under Section 4A1.1(a) for each such sentence." Section 4A1.2(e)(1) provides "Any prior sentence of imprisonment exceeding one year and one month that was imposed within 15 years of the defendant's commencement of the instant offense is counted."
Reciting the history again, Movant was sentenced to three years imprisonment on February 6, 1990. The execution of sentence was suspended and he was placed on five years probation. The probation was revoked on March 1, 1991 and Movant was sentenced to three years imprisonment in the Missouri Department of Corrections. He was paroled on October 17, 1991 and the probation expired January 17, 1994. PSR, p. 6.
As defendant's sentence on February 6, 1990 was for three years imprisonment, the 15-year period was applicable as opposed to the five-year period which Movant asserted was correct. While the February 6, 1990 sentence was about five months in excess of the 15-year limitation, (the offense here was July 13, 2005), the March 1, 1991 probation revocation and subsequent three-year imprisonment sentence was within the 15-year period. When Movant's probation was revoked March 1, 1991, he was ordered to serve the three-year sentence previously imposed and he did so at the Boonville, Missouri Correctional Center with a transfer to NASCO, a St. Louis Halfway House, approximately six weeks before the completion of his sentence. PSR, p. 6. Section 4A1.2(e)(1) also provides, "Also count any prior sentence of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of such 15-year period." Movant was incarcerated March 1, 1991 when his probation was revoked and he was paroled October 17, 1991. Obviously, he was imprisoned from March 1, 1991 to October 17, 1991. PSR, p. 6. This period was within the 15-year requirement.
Accordingly, it was appropriate to add three levels for the offense involved in the calculation of the criminal history category. Movant's attorney was not ineffective for failing to object to the Presentence Investigation Report because of this problem.
For the foregoing reasons, the Court finds that there is no reasonable probability that, but for counsel's errors, Movant would not have pleaded guilty and would have insisted on going to trial. There is no reasonable probability that but for counsel's unprofessional errors, the results of the proceedings would have been different. Accordingly, Movant has not met his burden to establish that his counsel was ineffective. His motion should therefore be denied.